Skip to main content


See other formats

Howard JB.doc 

9/7/2007 9:48:53 PM 




A.E. Dick Howard * 

In the year 2015, it will have been 800 years since King John 
met the barons at Runnymede to agree to the terms of what came 
to be known as Magna Carta. When that anniversary comes to 
hand, lawyers, judges, and others in countries touched by the An- 
glo-American legal tradition are apt to pause to reflect on the re- 
markable vitality of ideas still associated with that venerable 
document. Many of the Charter’s provisions deal with arcane 
matters of feudal relations and thus hold little interest for our 
time. We are not likely to muse, for example, on provisions deal- 

* White Burkett Miller Professor of Law and Public Affairs and Earle K. Shawe Re- 
search Professor, University of Virginia. The text of this essay is a fuller development of 
the keynote address given at the annual conference of the American Inns of Court in 
Richmond, Virginia, on April 13, 2007. The Inns of Court met in Virginia to mark the 
400th anniversary of the settlement at Jamestown. Symbolically, not only did the meeting 
take place at The Jefferson Hotel, it also occurred on Jefferson’s birthday. As the reader of 
this essay will see, I take us on a journey from Jamestown to Jefferson’s day and then to 
our own time. 

Regarding the title, there is no physical bridge at Jamestown — there is a ferry by which 
one crosses the James River. Lest the reader think I have confused my geography (as con- 
ventional wisdom, perhaps unaware of the full extent of the ancient kingdom of Bohemia, 
supposes Shakespeare to have been when, in The Winter’s Tale , he refers to the coast of 
Bohemia), I hasten to say that in my essay I use the Virginia Charter as a metaphorical 
bridge, one spanning space and time. 

I wish to acknowledge the assistance of Alexandre Lamy in the preparation of this es- 
say. He now has an edge on his classmates in his understanding of the roots and contours 
of constitutionalism. 


Howard JB.doc 

9/7/2007 9:48:53 PM 


ing with “aids,” a kind of tax or fee, for ransoming the King’s per- 
son or marrying his eldest daughter. 1 

Magna Carta remains, all the same, a cornerstone of much of 
our modern jurisprudence, indeed, of our very notion of constitu- 
tionalism. One notable provision declares: “No free man shall be 
taken, imprisoned, disseised, outlawed, banished, or in any way 
destroyed, nor will We [the King] proceed against or prosecute 
him, except by the lawful judgment of his peers and by the law of 
the land.” 2 In the Charter’s decree of “law of the land,” we find 
the roots of the concept of “due process of law.” 3 4 Implicit in 
Magna Carta is the principle which today we call the rule of law. 
The fact that King John — unwillingly, to be sure — was forced to 
assent to Magna Carta was a precedent for later generations’ ar- 
guments that no person, however powerful, is above the law. It 
was a precedent invoked when Parliament denied the pretensions 
of Stuart kings in seventeenth-century England and has its echo 
in modern times, for example, when the Supreme Court of the 
United States placed limits on presidential claims of privilege in 
United States v. Nixond 

In 2007, Americans marked the 400th anniversary of the first 
successful English settlement in North America — the colony at 
Jamestown. Remarkable tales come to us of the efforts to plant a 
colony in Virginia — hardship and privation among the earliest 
settlers, encounters with wary and often hostile natives, the near 
extinction of the colony during the “starving times” in 1609-1610, 
and moments of drama such as those relived when we speak of 
John Smith and Pocahontas. Disease and death notwithstanding, 
the colony survived. 5 With it were planted the seeds of modern 
America, including the English common law and notions of con- 
stitutionalism and the rule of law. 

The legal basis for the colony’s creation was the Virginia Char- 
ter of 1606. In the era of settlement and colonization, the Crown’s 
use of charter companies was a strategy to create a colonial em- 

1. For the events surrounding Magna Carta, and for the provisions of the charter 
itself, see A.E. DICK HOWARD, MAGNA CARTA: TEXT AND COMMENTARY (rev. ed. 1998). 

2. Id. at 45 (Chapter 39). 

3. By the end of the fourteenth century, “due process of law” and “law of the land” 
were largely interchangeable. 

4. United States v. Nixon, 418 U.S. 683, 713 (1974). 

5. See, e.g., James Horn, A Land as God Made It: Jamestown and the Birth of 
America (2005). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


pire by harnessing the capital and goals of private investors. At 
the close of the sixteenth century, England was not yet the center 
of the powerful empire that so occupied the world stage in the 
eighteenth and nineteenth centuries. Poor by the standards of 
Spanish and French monarchs, England’s Stuart kings were 
bothered by such nuisances as Parliament’s insistence on being 
consulted about taxes. Thus James I, who came to the throne in 
1603, saw the advantage of chartering groups of adventurers who 
were willing to shoulder the expense of colonization in hopes of 
profit and reward. 6 Portugal and Spain had already divided the 
Americas to be colonized and exploited. Great wealth was flowing 
back to the Iberian Peninsula. English investors were keen to re- 
alize quick profits in North America, similar to those being col- 
lected by the Spaniards and Portuguese. 

The Virginia Company was by no means the first such enter- 
prise. English charter companies had their antecedents in trading 
companies such as the Muscovy Company, the Levant Company, 
and the East India Company, which generally had monopolies on 
trade between England and a part of the world. 7 Starting in the 
1550s with the Levant Company, trading companies were trans- 
formed into joint stock companies. This made it possible to raise 
more money and to spread risk among more investors. The most 
successful of the joint stock companies was the East India Com- 
pany, and it was this model that served as the basis for the Vir- 
ginia Company of London. 8 

The Virginia Company and its successors in Virginia, and else- 
where in North America, carried charter enterprise beyond the 
model shaped by the trading companies and their progeny. Trade 
and enterprise lay, of course, at the heart of all these initiatives. 
The Virginia Company, however, was concerned, not only with 

6. Elizabeth Mancke, Chartered Enterprises and the Evolution of the British Atlantic 
World , in THE CREATION OF THE BRITISH ATLANTIC WORLD 237, 238-39 (Elizabeth Mancke 
& Carole Shammas eds., 2005). 

Companies (1896); 2 John P. Davis, Corporations: A Study of the Origin and 
Development of Great Business Combinations and of their Relations to 
Authority of the State (1905); T.S. Willan, The Early History of the Russia 
COMPANY: 1553-1603 (1956); Franklin A. Gevurtz, The Historical and Political Origins of 
the Corporate Board of Directors, 33 HOFSTRA L. REV. 89, 115-17 (2004); Cyril O’Donnell, 
Origins of the Corporate Executive, 26 BULL. Bus. HIST. Soc’Y 55, 63-66 (1952). 

8. See H.L. Osgood, The Corporation as a Form of Colonial Government, 11 POL. SCI. 
Q. 259, 263-64 (1896). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


trade, but also with the rather more daunting prospect of creating 
new communities in order to develop new markets. Thus govern- 
ance became intertwined with trade and enterprise. Not only did 
this make the Company’s work more complicated and challeng- 
ing, it also brought into being permanent settlements that pre- 
sented issues of government and protection for the Crown. It was 
one thing to establish a trading post that could be exploited and 
then abandoned; it was quite something else to bring new com- 
munities into being, as occurred in Virginia. As the seventeenth 
century unfolded, not only had the colonies in North America 
taken root, but the early risks of financing the colonies and pro- 
tecting them against other nations had receded as well. By the 
eighteenth century, the Crown and Parliament would face a dif- 
ferent set of challenges — colonists who, while subjects, were as- 
serting manifest claims of self-government in such areas as taxa- 
tion and internal affairs. 9 

I. The Charter and Its Provisions 

When the Virginia Charter of 1606 was drafted, modern consti- 
tutions as we know them still lay over a century and a half in the 
future. Constitutions took on their familiar form with the writing 
of constitutions for the American states upon the break with Eng- 
land. Meeting in Williamsburg in May 1776, the same convention 
that instructed Virginia’s delegates in Philadelphia to introduce a 
resolution for independence also set to work on the state’s first 
declaration of rights and frame of government. Constitutions soon 
followed in other states. The Philadelphia convention of 1787 
produced the first written national constitution of the modern 
era. In 1791, Poland adopted Europe’s first written constitution, 
followed in the same year by France; the era of constitutions had 
been truly launched. 

Today, virtually every country has a written constitution. 10 Not 
all, of course, are enforced, but, by and large, proclaiming a con- 
stitution is as much a rite of passage for a country as adopting a 

9. Mancke, supra note 6, at 260-61. 

10. The best known exception is the United Kingdom. Although constitutional 
changes, including Scottish devolution, reform of the House of Lords, and qualified en- 
trenchment of rights (in the Human Rights Bill), are unsettled in that country, one must 
assume that the United Kingdom is a long way from enacting a written constitution. 

Howard JB.doc 

9/7/2007 9:48:53 PM 


flag. In substantive terms, constitutions vary in their provisions. 
The United States Constitution, for example, is largely silent on 
positive rights such as social and economic welfare entitlements, 
while such rights are commonplace in the constitutions of many 
other countries. Even so, there are some features which one could 
say define the notion of what constitutions are about. If one were 
to create a checklist for the drafters of a constitution, it might in- 
clude the following: 

• A statement of sovereignty 

• The constitution’s constitutors (commonly something 
like “We the People”) 

• Purposes and aspirations 

• Structure of government 

• An enumeration of powers, including procedures for their 

• Limitations on power (such as a bill of rights) 

• Provisions for change (revision, amendment, etc.) 

By the end of the seventeenth century, England had seen the 
emergence of important documents that helped shape the consti- 
tutional order — among them, Magna Carta (1215), the Petition of 
Right (1628), and the Bill of Rights (1689). Such documents were 
not, however, efforts to speak to the full range of issues implicit in 
the writing of a modern constitution. In large part, their drafters 
were concerned with contesting royal claims of power or preroga- 
tive. Unlike constitution-makers, neither the barons at Runny- 
mede nor the seventeenth-century’s parliamentarians were seek- 
ing to constitute a state. 

In planting colonies in the New World, English settlers found 
themselves in circumstances calling for something closer to a con- 
stitution. The investors in the Virginia Company could not have 
proclaimed, and would not have imagined proclaiming, sover- 
eignty; they operated at the leave of the Crown. But because they 
were writing a document for a new land, the entrepreneurs had to 
think about many of the issues constitution-makers inevitably 
encounter. When we examine the text of the Virginia Charter of 
1606, what do we find? 

At the Charter’s outset, James I licensed various of his subjects 
“to make Habitation, Plantation, and to deduce a colony of sundry 

Howard JB.doc 

9/7/2007 9:48:53 PM 


of our People into that part of America commonly called VIRGINIA 
. . . .” n The Charter sets forth more than one purpose. There is 
the obligatory reference to Christianizing a savage people; the 
colony is seen as “propagating of Christian Religion to such Peo- 
ple, as yet live in Darkness and miserable Ignorance of the true 
Knowledge and Worship of God, and may in time bring the Infi- 
dels and Savages, living in those parts, to human Civility, and to 
a settled and quiet Government.” 12 Having thus nodded to a 
higher purpose, the Charter then gets down to business — for that, 
of course, is what the Charter is ultimately about. The grantees 
are referred to as “adventurers” — don’t think of Huck Finn; think 
of “venture,” as in “venture capital.” Identifying the region in 
which plantations may be established, the Charter gives the ad- 
venturers the right to exploit “all the Lands, Soil, Grounds, Ha- 
vens, Ports, Rivers, Mines, Minerals, Woods, Waters, Marshes, 
Fishings, Commodities, and Hereditaments, whatsoever.” 13 Eve- 
ryone, it seems, is going to get rich. Lest the generic reference to 
“mines” and “minerals” not be a sufficient clue, the Charter ex- 
plicitly enjoins that the colonists “shall and lawfully may” mine 
for gold, silver, and copper (note the directive “shall” added to the 
permissive “may”). 14 The King is to get his share — one-fifth of all 
the gold and silver, one-fifteenth of all the copper. 15 

Governance is expressly dealt with in the Charter. 16 The colony 
is to have a Council empowered to “govern and order all Matters 
and Causes,” subject to laws, ordinances, and instructions given 
the King’s Privy Seal. 17 In some detail, the Charter confers pow- 
ers upon the Council. Both in its specificity and in the subjects 
that it addresses, this enumeration reminds one of the manner in 
which Article I, Section 8, of the United States Constitution con- 

11. 7 The Federal and State Constitutions, Colonial Charters and Other 
ORGANIC Laws 3783 (Francis Newton Thorpe ed., 1909) [hereinafter Thorpe], The text of 
the Charter may also be found in 1 THE JAMESTOWN VOYAGES UNDER THE FIRST CHARTER, 
1606-1609, at 24-34 (Phillip L. Barbour ed., 1969). 

12. 7 Thorpe, supra note 11, at 3784. 

13. Id. 

14. Id. at 3786. 

15. Id. 

16. The Charter recognizes the adventurers’ desire to create two colonies. It therefore 
provides that a group based in London will settle in one area (between the 34th and 41st 
parallels), and those from Bristol, Exeter, and Plymouth will settle in another (between 
the 38th and 45th parallels). Id. at 3783. For simplicity's sake, I refer in this narrative to 
“the Colony” rather than to the (two) “Colonies.” 

17. Id. at 3785. The Charter also provides for a Council in England. Id. at 3786. 

Howard JB.doc 

9/7/2007 9:48:53 PM 


fers powers upon Congress. Some of the Council’s powers, like 
those of Congress, are clearly intended to facilitate trade and 
commerce. An example is the power of coinage — to “cause to be 
made a Coin, to pass current there between the people of those 
several Colonies, for the more Ease of Traffick and Bargaining 
between and amongst them and the Natives there,” the Council is 
to decide on the metal and form of such coins. 18 Among the Article 
I, Section 8 powers of Congress is a like power — “To coin Money, 
regulate the Value thereof . . . .” 19 Similarly, the Charter’s grant 
of power to levy tariffs upon those, whether Crown subjects or 
foreigners, who might traffic within the Colony’s territory brings 
to mind Congress’s power to “regulate Commerce with foreign 
Nations, and among the several States, and with the Indian 
tribes.” 20 

Defense is a particular concern of the Charter. In undertaking 
voyages and settlements, the colonists are enjoined to have suffi- 
cient “Armour, Weapons, Ordinance, Powder, Victual, and all 
other things necessary” for the colony’s defense. 21 Moreover, the 
colonists are given plenary power in defending themselves to “en- 
counter, expulse, repel, and resist, as well by Sea as by Land, by 
all Ways and Means whatsoever, all and every such Person or 
Persons, as without the especial License [of the Colony], shall at- 
tempt to inhabit within [the Colony].” 22 Defense, as we know, 
along with facilitating commerce, was paramount among the con- 
cerns bringing the framers to Philadelphia in 1787. Thus one 
finds, in Article I, Section 8 extensive concern with defense — the 
powers to tax in order to provide for the “common Defence,” to 
maintain an army and a navy, and to call forth the militia, among 

Thus, sovereignty aside, the Charter tracks much of a modern 
constitution’s concern for purpose, structure, and power. But 
what of rights? It is the rare constitution in our time that does 

18. Id. at 3786. 

19. U.S. Const, art I, § 8, cl. 5. 

20. Id. art. I, § 8, cl. 3; 7 Thorpe, supra note 11, at 3787. The Charter’s provision is 
manifestly protectionist, in that it provides for an imposition upon “Strangers, and not 
Subjects under our Obeysance” of twice the rate imposed upon those “being of any Realms, 
or Dominions under our Obedience.” 7 Thorpe, supra note 11, at 3787. 

21. 7 Thrope, supra note 11, at 3786. 

22. Id. at 3787. The Charter’s language reflects an obvious concern on the part of Eng- 
land that France, Spain, or other European powers might seek to encroach on the English 
domain — not an unreasonable fear. 

Howard JB.doc 

9/7/2007 9:48:53 PM 


not have a bill of rights or, alternatively, protections for rights 
spelled out in the body of the constitution or in another document 
of constitutional status. Looking at a seventeenth-century charter 
preoccupied with exploitation and trade, one might not expect to 
find provisions dealing with rights, but the 1606 Charter has just 
such a provision. The King declares that every English subject 
who dwells within the Colony, as well as their children, “shall 
HAVE and enjoy all Liberties, Franchises, and Immunities, within 
any of our other Dominions, to all Intents and Purposes, as if they 
had been abiding and born” in England or in any of the King’s 
other dominions. 23 In other words, when a colonist emigrated 
from England, he did not leave the protections of English consti- 
tutionalism or the common law behind. Subsequent history, espe- 
cially during the American colonists’ claims of right in protesting 
British policies in the years leading up to the Revolution, would 
prove how potent and enduring this Charter guarantee proved to 

The Virginia Charter of 1606 was not a constitution. Yet its 
provisions took the North American colonists an important step 
closer to the world of modern constitutions. 

II. After Jamestown 

The Virginia settlement survived, and others followed. The le- 
gal basis for the later colonies varied. Virginia was founded by a 
chartered company while some colonies were in the hands of pro- 
prietors, such as Cecil Calvert’s Maryland. As time passed, direct 
royal control became more common. Yet an important precedent 
from the Virginia Charter became a leitmotif of subsequent char- 
ters. The 1606 Charter’s guarantee of “[liberties, [franchises, 
and [i] mmunities” 24 (or like phraseology) commonly appeared in 
charters granted for later colonies. The Charter of Massachusetts 
Bay of 1629, for example, declared that all who should settle in 
that colony should “have and enjoy all liberties and Immunities of 
free and naturall Subjects ... to all Intents, [Constructions], and 
Purposes whatsoever, as [if] they and [everyone] of them were 
borne within the Realme of England.” 25 One finds similar lan- 

23. Id. at 3788. 

24. Id. 

25. 3 id. at 1857. 

Howard JB.doc 

9/7/2007 9:48:53 PM 


guage in other charters, including Maryland (1632), Maine 
(1639), Connecticut (1662), North Carolina (1663), Rhode Island 
(1663), North Carolina (1665), and Massachusetts Bay (1691). 26 
Indeed, the last American charter, that of Georgia in 1732, had 
language virtually identical to that of Massachusetts Bay’s Char- 
ter almost a century earlier. 27 

As the colonies expanded, the need for laws became more evi- 
dent. As English colonists, the settlers looked, not surprisingly, to 
English laws for guidance. The colonies’ charters encouraged this 
natural tendency. It was standard practice for the charters’ draft- 
ers to insert language requiring that laws and ordinances enacted 
in the colonies be agreeable to the laws of England. Typical was 
the provision in Virginia’s second Charter (1609), which required 
that all “Statutes, Ordinances and Proceedings as near as conven- 
iently may be, be agreeable to the Laws, Statutes, Government, 
and Policy of this our Realm of England .” 28 Later charters some- 
times provided for the transmission of colonial statutes to Eng- 
land for approval or disapproval. 29 A few charters allowed liti- 
gants in colonial courts to appeal certain judgments to the Privy 
Council in England. 30 

Notwithstanding the ties of laws and trade, England was a 
long way from the North American colonies in time and commu- 
nication. Moreover, seventeenth-century England saw upheavals 
such as a fierce civil war, the execution of Charles I, the Crom- 
wellian regime, the return of the Stuarts, and their eventual 
ouster in favor of William and Mary. As they became better estab- 
lished, distance and distraction fed a natural tendency for the 

26. Id. at 1681 (Maryland, 1632); Id. at 1635 (Maine, 1639); 1 id. at 533 (Connecticut, 
1662); 5 id. at 2747 (North Carolina, 1663); 6 id. at 3220 (Rhode Island, 1663); 5 id. at 
2765 (North Carolina, 1665); 3 id. at 1880-81 (Massachusetts Bay, 1691). 

27. 2 Thorpe, supra note 11, at 773. 

28. 7 id. at 3801. For similar provisions in other charters, see THE THREE CHARTERS 
OF THE VIRGINIA Company of London 86-87 (E.G. Swem ed., 1957); 7 Thorpe, supra note 
11, at 3806 (Virginia, 1611-1612); see also 3 id. at 1833 (Massachusetts, 1620); id. at 1853 
(Massachusetts Bay, 1629); id. at 1680 (Maryland, 1632); id. at 1628 (Maine, 1639); 1 id. 
at 533 (Connecticut, 1662); 5 id. at 2746 (North Carolina, 1663); 6 id. at 3215 (Rhode Is- 
land, 1663); 3 id. at 1638-1639 (Maine, 1664); 5 id. at 2764 (North Carolina, 1665); 3 id. at 
1642 (Maine, 1674); 5 id. at 3038 (Pennsylvania, 1681); 3 id. at 1882 (Massachusetts Bay, 

29. See, e.g., 3 Thorpe, supra note 11, at 1864 (the Commission of Sir Edmund Andros 
for the Dominion of New England (1688)). 

30. See, e.g., id. at 1881-82 (Charter of Massachusetts Bay (1691) (appeals in actions 
in which amount in controversy exceeded 300 pounds)). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


colonies to have a greater say in their own affairs. An important 
step in that direction came when the Virginia Company in- 
structed the Governor, Sir George Yeardley, to summon an as- 
sembly to participate in the colony’s governance. The Governor 
was instructed to have the inhabitants of each town, hundred, or 
plantation choose two burgesses to meet annually as a General 
Assembly “to make, ordain, and enact such general Laws and Or- 
ders, for the Behoof of the said Colony, and the good Government 
thereof, as shall, from time to time, appear necessary or requi- 
site,” subject to the Governor’s power of veto. 31 

What motives led the Virginia Company to take this step? 
Some historians, such as Thomas J. Wertenbaker, see idealism as 
a driving force. 32 Others, such as Perry Miller, discern purely 
commercial purposes — the Company’s efforts to shore up its in- 
vestments in times of financial difficulties. 33 Whatever the back- 
ers’ motives, in 1619 Yeardley did convene the General Assem- 
bly — the first representative legislative assembly in the New 
World. Virginia’s example spread to other colonies; the Charter of 
Massachusetts Bay (1629), for example, called for the Governor to 
assemble a General Court. 34 

The colonies’ charters, of course, reminded colonial legislators 
that their laws must not be in conflict with the laws of England. 
Even so, especially with the passage of time, colonial legislators 
came to see their chambers as direct descendants of the House of 
Commons, vested with the privileges asserted and maintained by 
that body in its protracted struggles with the Crown. 35 An inter- 
esting example of this attitude came in the first sitting of Vir- 

31. 7 id. at 3811. There is no modern copy of the 1618 Great Charter; this text is 
based on “An Ordinance and Constitution of the Treasurer, Council, and Company in Eng- 
land, for a Council of State and General Assembly,” dated July 24, 1621. Richard L. Perry 
explains that “Articles 1-5 of the Ordinances of July 24, 1621, are believed to be almost 
identical to some of the provisions of a lost document issued November 28, 1618, under 
which the first Assembly of Virginia was convened by Governor [Sir George] Yeardley.” 
Sources of OUR Liberties 52 n.17 (Richard L. Perry ed., 1978). 

32. See Thomas J. Wertenbaker, VIRGINIA UNDER THE STUARTS: 1607-1688, at 32-36 

33. Perry Miller, Religion and Society in the Early Literature: The Religious Impulse 
in the Founding of Virginia, 6 WM. & MARY Q. (3d ser.) 24, 25 (1949). For the fullest 
Company (1932). 

34. 3 Thorpe, supra note 11, at 1852-53. 

35. Bernard Schwartz, The Great Rights of Mankind: A History of the 
American Bill of Rights 31 (1977). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


ginia’s House of Burgesses when the assembly’s speaker disputed 
the qualifications of two members. In response, the burgesses ex- 
ercised their right to be the sole judge of the assembly members’ 
qualifications — the same prerogative claimed by Parliament. 36 

III. Seventeenth-Century England 

The seventeenth century saw extraordinary events unfolding in 
England. As the colonies in North America were taking root, Eng- 
land saw struggles between Stuart kings and Parliament, a civil 
war, the execution of Charles I, the Cromwellian Commonwealth, 
the Leveller movement, the restoration of the Stuarts, their 
ouster during a bloodless revolution, the accession of William and 
Mary, and the laying of the foundation of the modern British 
Constitution. Even though these events took place in the mother 
country, they nevertheless had profound implications for notions 
of constitutionalism in America, especially in the eighteenth cen- 

The first Stuart king, James I, (formerly James VI of Scotland), 
came to the throne in 1603. He and his successor, Charles I, often 
found themselves at cross-purposes with Parliament. The Stuart 
kings seemed propelled by a chronic need for money, for example 
the expenses of maintaining a lavish court. As a result, they re- 
sorted to various forms of prerogative taxation, such as forced 
loans. These and other actions, including illegal arrests and the 
application of martial law to civilians, provoked calls for action in 
Parliament. Sir Edward Coke, a leader of the parliamentary 
cause, insisted that the subjects’ liberties were not acts of grace 
on the king’s part, but matters of right. [S] overeign power’ is no 
parliamentary word,” Coke declared, “Magna Carta is such a fel- 
low, that he will have no sovereign.” 37 Parliament affirmed its 
constitutional beliefs in the Petition of Right (1628), which reaf- 
firmed Parliament’s right to consent to taxation, condemned im- 
prisonment without cause, opposed the quartering of soldiers in 

36. Id.; cf. U.S. CONST, art. I, § 5 (“Each House shall be the Judge of the Elections, Re- 
turns and Qualifications of its own Members.”) 

37. Charles Howard McIlwain, Constitutionalism Ancient and Modern 130 

Howard JB.doc 

9/7/2007 9:48:53 PM 


private homes, and denounced the practice of military tribunals’ 
trying civilians. 38 

The struggles between Charles I and Parliament continued. In 
1629, Charles dissolved that body and no Parliament was con- 
vened for eleven years — the longest period during which an Eng- 
lish king attempted to govern without a parliament. Charles con- 
tinued to govern in an arbitrary fashion, levying prerogative 
taxes and imprisoning persons who refused to pay. In 1642, civil 
war broke out. Eventually, after war had subsided only to resume 
again, a radical faction in control of Parliament tried Charles I for 
treason and executed him in 1649. From 1649 to 1660, England 
was ruled by the regime established by Oliver Cromwell. 

It was this period of upheaval that saw the appearance of the 
Agreement of the People (1649) — a document which foreshadows 
the modern democratic tradition. The protracted civil war had 
stirred discontent even in the ranks of Cromwell’s army. Disen- 
chanted soldiers, junior officers, and civilian radicals pressed for 
reforms and put forth ideas that caused them to be known as the 
“Levellers.” 39 Their efforts were opposed by the New Model 
Army’s senior officers and led to the arrest and imprisonment of 
some of the radicals’ leaders, including “Free John” Lilburne. 
From the Tower of London, Lilburne and several comrades in 
May 1649 issued the Agreement of the People. 40 It is a remark- 
able document. The Agreement abolishes the monarchy and the 
House of Lords, vests governmental authority in a popularly 
elected Representative, decrees a broad franchise, mandates an- 
nual elections of the Representative, enumerates individual 
rights (among them counsel, trial by jury, and speedy trial), and 
protects freedom of conscience. The Agreement even includes a 
supremacy clause — the declaration that any laws made contrary 
to any part of the Agreement are null and void. 41 Had the Agree- 
ment gone into effect, it would have effected a constitutional revo- 

38. l The Bill of Rights: A Documentary History 19-21 (Bernard Schwartz ed., 
1971) [hereinafter THE BILL OF RIGHTS], On the Petition of Right, see CHRISTOPHER HILL, 
The Century of Revolution, 1603-1714, at 52-53 (2002). 

(1971); see generally The ENGLISH LEVELLERS (Andrew Sharp ed., 1998). 

40. For the text of the Agreement of the People, see LEVELLER MANIFESTOES OF THE 
PURITAN REVOLUTION 400-10 (Don M. Wolfe ed., 1944). Actually, the document of May 
1649 was the third Agreement of the People, previous drafts having been urged upon the 
Army's General Council as early as October 1647. HILL, supra note 38, at 128. 

41. Leveller Manifestoes, supra note 40, at 409 (Article XXX). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


lution in England. Even without the force of law, the Agreement 
proved unquestionably effective in nurturing democratic and con- 
stitutional thinking, especially in America. 

Cromwell’s regime was short-lived; in 1660, the Stuarts were 
returned to the throne. Charles II (1660-85) is sometimes re- 
ferred to as the “Merry Monarch,” and his era is perhaps best re- 
membered for his mistress, Nell Gwynne, and for restoration 
theatre (the previous regime had enforced a more puritanical or- 
der). But he and his successor, James II, employed policies that 
showed the struggles between the Crown and Parliament mark- 
ing the earlier part of the century were to continue. James II 
made broad use of prerogative powers, including that of dispens- 
ing with a law (making exceptions to a law in particular cases) 
and the even more sweeping power of suspending a law (treating 
a law as being not in force). James took steps to place judges fa- 
vorable to his prerogative powers on the bench — an attack on the 
independence of the judiciary. In an effort to subvert Parliament, 
he interfered with elections and paid the salaries of sympathetic 
members. He even had a standing army (20,000 troops — an un- 
commonly large army for peacetime) quartered near London, 
probably to intimidate Parliament. Having perhaps less political 
sense than Charles II, James II embarked on a program openly 
aimed at the political ascendancy of Catholics. Opponents of 
James’s policies turned to William of Orange for help. William as- 
sembled an army, landed in England in November 1688, and 
marched unopposed to London. James II fled to France, never to 
return to England (Stuart uprisings in 1715 and 1745 were put 

A provisional government was organized in London, and in 
January 1689, the Convention Parliament declared James II to 
have abdicated the throne. Parliament offered the throne to Wil- 
liam and Mary. In December 1689, Parliament enacted the Bill of 
Rights, a comprehensive settlement emphatically curtailing royal 
prerogative and making clear that, henceforth, constitutional 
government centered on Parliament. The Revolution Settlement 
of 1689 — often called the Glorious Revolution — is the foundation 
on which rests much of constitutionalism in modern Britain. It is 
also important for its influence on American constitutionalism. 
Anyone familiar with the United States Constitution and Bill of 
Rights will recognize the manner in which many of the American 

Howard JB.doc 

9/7/2007 9:48:53 PM 


provisions draw directly from their counterparts in the English 
Bill of Rights. Examples include the following: 

• A ban on the Crown’s levying taxes without the consent 
of Parliament 42 

• The right of petition 43 

• The right to bear arms 44 

• Free election of members of Parliament 45 

• The right of members of Parliament not to have their 
speech or proceedings questioned in any other place 46 

• A ban on excessive bail and fines and on cruel and 
unusual punishment 47 

• The requirement of frequent parliaments 48 

By the end of the seventeenth century, England had taken 
manifest steps toward the principles which animate modern con- 
stitutional discourse, both in that country and elsewhere. Docu- 
ments like the Petition of Right, the Agreement of the People, and 
the Bill of Rights are landmarks in the shaping of constitutional- 
ism. Even while adding their own contributions to notions of law 
and constitutionalism, the North American colonists were, of 
course, well aware of events in England. Moreover, heir as they 
were to the organic and evolving traditions of the common law, 
the colonists had not forgotten the charter guarantees of the “lib- 
erties, franchises, and immunities” to which they and their pos- 
terity were entitled. These claims were to take on new force in the 
eighteenth century when the colonists were roused to oppose Brit- 
ish policies they saw as infringing fundamental rights. 

42. Cf. U.S. CONST, art. I, §§ 7-8 (mandating that revenue bills are to originate in the 
House of Representatives and Congress has the power to levy and collect taxes). 

43. Cf. id. amend. I (forbidding Congress from enacting laws abridging the right to 

44. Cf. id. amend. II (right to bear arms). The English provision is limited to Protes- 
tants’ bearing arms — a reminder of Catholic support for James II. 

45. Cf. id. art. I, § 2 (elections of House of Representatives “by the people”). 

46. Cf. id. art. I, § 6 (right of members of Congress not to be questioned “in any other 
place” for “any speech or debate in either house.”). 

47. Cf. id. amend. VIII (ban on excessive bail and fines and on cruel and unusual pun- 

48. Cf. id. art. I, § 2 (elections of the House of Representatives every two years). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


IV. The Road to the American Revolution 

After the Seven Years War (1756-63) — the French and Indian 
War in North America — Britain’s Parliament turned to the colo- 
nies to help defray the heavy expenses of conducting those wars. 
His Majesty’s government thought, perhaps understandably, 
that, having defended the colonies on the frontiers, the govern- 
ment should look to the colonists to pay some of the tab. History 
records the American response. The colonists were unmoved by 
the notion that, although they did not have actual members in 
Parliament, they enjoyed “virtual” representation in that body. 
Colonial leaders responded to Parliament’s taxes with cries of “no 
taxation without representation.” They were as outraged by Brit- 
ish taxing measures as seventeenth-century parliamentarians 
were by the Stuart monarchs’ abuse of the royal prerogative. 

In opposing British policies, the colonists based their case 
squarely on the early charters. In 1765, Virginia’s House of Bur- 
gesses adopted resolutions condemning the Stamp Act. In so do- 
ing, they invoked the original charter. The first “Adventurers and 
Settlers,” the resolutions declared, “brought with them, and 
transmitted to their Posterity, and all other his Majesty’s Sub- 
jects since inhabiting in this his Majesty’s said Colony, all the 
Liberties, Privileges, Franchises, and Immunities, that have at 
any [t]ime been held, enjoyed, and possessed, by the people of 
Great Britain.” 49 

Foremost among those rights, the burgesses averred, was the 
right of the people through their chosen representatives to tax 
themselves — “the only Security against a burthensome Taxation, 
and the distinguishing Characteristick of British Freedom, with- 
out which the ancient Constitution cannot exist.” 50 

Repeal of the Stamp Act and other duties, save for a tax on tea, 
eased tensions and brought for a time renewed sentiments of loy- 
alty and affection for the Crown. But the Boston Tea Party pro- 
voked Parliament into taking punitive measures, such as the Bos- 
ton Port Bill, and placing Boston under a kind of blockade until it 
paid reparations for the jettisoned tea. This and other measures 

49. Journals of the House of Burgesses of Virginia, 1761-1765, at 360 (John 
Pendleton Kennedy ed., 1907). 

50. Id . 

Howard JB.doc 

9/7/2007 9:48:53 PM 


adopted by Parliament were denounced in the colonies as the Co- 
ercive or Intolerable Acts. The colonies were quick to rally to the 
support of Massachusetts. In May 1774, just before the punitive 
measures were to take effect, Virginia’s House of Burgesses set 
aside a day of prayer so that King and Parliament might be dis- 
suaded from a course “pregnant with their ruin.” 51 Governor 
Dunmore forthwith dissolved the Assembly. Reconvening in the 
Raleigh Tavern, the burgesses agreed upon a resolution recom- 
mending that each colony appoint delegates to meet in a general 
congress to deliberate on a common course of action. Spurred by 
the efforts of the well organized Committees of Correspondence, 
other colonies passed similar resolutions. 52 

The Continental Congress, convening in September 1774, ad- 
dressed a number of issues, among them a petition to the King, 
an address to the people of Great Britain, and agreements on im- 
ports and exports. The keystone of their resolutions was the Dec- 
laration and Resolves making the case for the colonists’ rights. In 
articulating those rights, the document stakes the colonists’ 
claims to rights of life, liberty, and property on the colonial char- 
ters. Our ancestors, the first settlers, declare the resolutions, 
“were at the time of their emigration from the mother country, 
entitled to all the rights, liberties, and immunities of free and 
natural-born subjects, within the realm of England.” 53 Their de- 
scendants, it continues, are entitled to the exercise and enjoy- 
ment of those rights. The very foundation of English liberty, in- 
deed, of all free government, is the people’s right to participate in 
their legislative councils. Not being represented in Parliament, 
the colonists are entitled to a “free and exclusive power” to legis- 
late in all cases of taxation and internal polity. 54 

One who reads colonial resolutions and tracts from the decade 
leading up to revolution is likely to note their intriguing eclecti- 
cism. Some colonists looked to higher law. John Dickinson, in his 
Address to the Committee of Correspondence in Barbados (1766), 
said that Americans’ rights derive, not from “parchments and 
seals,” but from “the decrees of Providence .... [i]n short, they 

51. Journals of the House of Burgesses of Virginia, 1773-1776, at 124 (John 
Pendleton Kennedy ed., 1905). 

52. 1 AMERICAN Archives 350-51 (Peter Force ed., 4th ser. 1837). 

53. l Journals of the Continental Congress: 1774-1789, at 68 (Worthington 
Chauncey Ford ed., 1904) [hereinafter CONTINENTAL CONGRESS], 

54. Id. 

Howard JB.doc 

9/7/2007 9:48:53 PM 


are founded on the immutable maxims of reason and justice.” 55 
Others argued for grounding the colonists’ case in the charters 
and the British Constitution. At the Continental Congress in 
1774, James Duane, of New York, preferred a constitutional case 
to one sounding of natural law; he was for: 

grounding our Rights on the Laws and Constitution of the Country 
from whence We sprung, and Charters, without recurring to the Law 
of Nature — because this will be a feeble Support. Charters are Com- 
pacts between the Crown and the People and I think on this founda- 
tion the Charter Governments stand firm. 56 

Ultimately the colonists were willing to announce that natural 
law, British constitutionalism, and the colonial charters were all 
aligned on their side. The Continental Congress’s 1774 resolu- 
tions put it succinctly: “That the inhabitants of the English Colo- 
nies in North America, by the immutable laws of nature, the 
principles of the English constitution, and the several charters or 
compacts, have the following Rights . . . .” 57 The resolutions then 
proceed to enumerate those rights — among others, their own leg- 
islatures’ control over taxation and internal polity, trial by jury, 
peaceable assembly, petition, and no standing armies during 
peacetime nor troops quartered in their homes. In these 1774 re- 
solves, one finds a blending of the guarantees of the colonial char- 
ters, beginning with the Virginia Charter of 1606, and the consti- 
tutional principles forged in seventeenth-century England, 
especially the Bill of Rights of 1689. Moreover, one finds an 
emerging sense of the people’s control over their own affairs, the 
heightened confidence of eighteenth-century Americans in their 
own cause, and the readiness to stake that cause on the charters, 
the British Constitution, and higher law. 

V. The Virginia Charter’s Importance 

Over a century and a half lies between the drafting of the Vir- 
ginia Charter of 1606 and the era during which Americans chal- 
lenged British authority and then, revolution won, created their 

55. 1 Writings of John Dickinson, in 14 MEMOIRS OF THE HISTORICAL SOCIETY OF 
PENNSYLVANIA 1, 262 (Paul Leicester Ford ed., 1895). 

56. John Adams, Notes of Debates in the Continental Congress, in 2 DIARY AND 
Autobiography of John Adams 129 (L.H. Butterfield ed., 1962). 

57. l Continental Congress, supra note 53, at 67. 

Howard JB.doc 

9/7/2007 9:48:53 PM 


state and federal constitutions. What place does the Virginia 
Charter have in the journey to constitutional government? 

A. The Idea of a Written Constitution 

Long before the Virginia settlement, England had begun shap- 
ing its tradition of written “liberty” documents. That story began 
at least as early as the thirteenth-century’s Magna Carta, and it 
took on fuller body in the seventeenth century when the Petition 
of Right and the Bill of Rights were conceived. These documents 
grew out of struggles for power and concerns regarding the 
Crown’s overreaching itself, as when the barons confronted King 
John in 1215 and when Parliament challenged the Stuart kings’ 
claims of prerogative power. All of these contests took place 
within a well established polity. The Agreement of the People 
came closer to looking like what we would call a constitution, but 
it was not adopted. 

By contrast, the Virginia Charter and the subsequent charters 
for other colonies applied to newly established territories. Lying 
far from England, these colonies were not meant to be mere trad- 
ing posts but were intended to be settlements in a new land. 
Principles and institutions for governance needed to be sketched. 
However much those ideas and structures might be modeled upon 
those found in England, they framed polities which, as popula- 
tions grew and new challenges were posed, would inevitably in- 
vite local adaptation. The Virginia Charter and those of its sister 
colonies were an important step toward modern constitutions. 

B. The Planting of an Organic Legal and Constitutional 


Students of comparative law and constitutionalism are bound 
to be struck by the distinctiveness of law and constitutionalism 
shaped in England and exported to its colonies. Unlike the civil 
law, the common law has an unfolding, evolutionary character. 
British constitutionalism includes the notion of ancient inherited 
right. Whether at Runnymede in 1215 or at Westminster in 1628, 
those who drew up Magna Carta or the Petition of Right did not 
see themselves as mere legislators. Instead they were giving voice 
to enduring principles which, if a monarch strayed, had to be 
called into renewed service. This tradition looks both to the past 
and to the future. It looks to the past by building upon an inher- 

Howard JB.doc 

9/7/2007 9:48:53 PM 


ited legacy and it looks ahead by seeing rights as being passed 
along to future generations. Thus the Virginia Charter guaran- 
teed liberties, franchises, and immunities not only to the immedi- 
ate settlers but also to their posterity. In the decade before inde- 
pendence, colonial resolves regularly invoked the charter 
assurances as part of their generation’s constitutional right. 

American constitutionalism has taken on the unmistakable 
qualities of the organic, evolving nature of the common law and of 
British constitutionalism. The United States Constitution is not, 
of course, infinitely malleable, even though some Supreme Court 
opinions may make us wonder. Many of its provisions are precise 
and determined (such as the requirement that the President must 
be 35 years of age). But, as Chief Justice John Marshall reminded 
us, it is after all, a constitution, meant to endure and to weather 
the storms of passing generations. 58 It is not a train ticket, good 
only for travel to one destination. Even while it commands fidel- 
ity to its great purposes and design, the Constitution requires in- 
terpretation. This is especially true of those provisions that have 
a history grounded in English law and constitutionalism. Thus 
due process of law, whose history reaches back to Magna Carta’s 
“law of the land,” has seen manifold applications in American 
constitutional law. Not only does it lay down requirements of 
fundamental fairness in criminal procedure, but it also continues 
to this day to have expanding substantive dimensions, such as 
those embracing rights of personal privacy and autonomy. 59 Simi- 
larly, the ban on cruel and unusual punishment, found in the 
1689 Bill of Rights, continues to evolve as the Supreme Court 
looks to contemporary community standards (not only in the 
United States, but abroad) in deciding when death sentences 
cannot be carried out. 60 

58. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (“[W]e must never 
forget, that it is a constitution we are expounding.”). 

59. See, e.g., Lawrence v. Texas, 539 U.S. 558, 578-79 (2003) (intimate sexual con- 
duct); Roe v. Wade, 410 U.S. 113, 164-66 (1973) (abortion); Griswold v. Connecticut, 381 
U.S. 479, 499 (1965) (Harlan, J., concurring) (marital privacy); Pierce v. Soc’y of Sisters, 
268 U.S. 510, 534-36 (1925) (educating one’s children in private schools); Meyer v. Ne- 
braska, 262 U.S. 390, 390-403 (1923) (teaching foreign languages). 

60. See, e.g., Roper v. Simmons, 543 U.S. 551, 578-79 (2005) (barring execution of 
youthful offenders, overruling Stanford v. Kentucky, 492 U.S. 361 (1989)); Atkins v. Vir- 
ginia, 536 U.S. 304, 321 (2002) (barring execution of the mentally retarded, overruling 
Penry v. Lynaugh, 492 U.S. 302 (1989)). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


C. The Articulation and Protection of Fundamental Rights 

Closely allied to the notion of unfolding constitutionalism is 
the notion that ultimately it is individual liberty and rights that 
are protected. Magna Carta set the precedent for the idea of the 
rule of law — that no one, not even the King, is above the law. The 
Great Charter spelled out fundamental guarantees, chief among 
them the requirement that proceedings be conducted according to 
the law of the land. The Virginia Charter of 1606 brought such 
principles to the New World. England saw further statements of 
fundamental rights in the Petition of Right and in the Bill of 
Rights. When the colonists wrote their resolutions and declara- 
tions in the decade after the Stamp Act, they were building a con- 
stitutional case, intertwined as it was with notions of higher law. 
From the very beginning of the American polity, the whole enter- 
prise was founded upon a belief, as the Declaration of Independ- 
ence maintained, in “certain unalienable rights.” In May 1776, 
the convention at Williamsburg that instructed Virginia’s dele- 
gates at Philadelphia to introduce a resolution for independence 
went to work on a constitution. Before drafting a frame of gov- 
ernment, the convention thought the first step must be the draft- 
ing of a declaration of rights. Largely the work of George Mason, 
the Virginia Declaration of Rights was the model for other state 
bills of rights and even influenced the drafting of France’s Decla- 
ration of Rights of Man and the Citizen in 1789. When the 1787 
Philadelphia Convention thought it unnecessary to include a bill 
of rights, the Constitution’s proponents were so hard pressed in 
the ratification contest that they undertook an implicit pledge 
that upon ratification, they would add a bill of rights — a pledge 
that James Madison redeemed at the First Congress. Much of the 
genius of the Madisonian design for the Constitution itself lies, of 
course, in institution, design, and process, such as separation of 
powers and checks and balances. But from the Virginia Charter 
of 1606 through the drafting of the American state and federal 
constitutions, a belief in fundamental rights has been an idee fixe 
of American constitutionalism. 

D. Toward the Idea of a Constitution as Fundamental Law 

The notion of a superstatute — a fundamental law superior to 
ordinary law — has ancient origins. In 1368, a statute of Edward 
III commanded that Magna Carta “be holden and kept in all 

Howard JB.doc 

9/7/2007 9:48:53 PM 


Points; and if there be any Statute made to the contrary, it shall 
be holden for none.” 61 Here, for all the obvious questions about 
Parliament’s power to repeal any statute, we see the emergence of 
the idea that some laws — today we would point to constitutions — 
are more fundamental than others. England’s Agreement of the 
People anticipated modern constitutional supremacy when it de- 
clared that any law contrary to the Agreement was to be consid- 
ered null and void. 62 William Penn’s Fundamental Law for West 
New Jersey (1676) brought this principle of constitutionalism to 
the New World when it declared that the colony’s legislative body 
was “to make no laws that in the least contradict, differ or vary 
from the said fundamentals . . . .” 63 In the years leading to inde- 
pendence, the colonists’ arguments were manifestly constitutional 
in nature, that is, they asserted constitutional limits on Parlia- 
ment’s powers to legislate for the colonies in such areas as taxa- 
tion and internal polity. Constitutional supremacy is clearly 
stated in the United States Constitution’s declaration that the 
Constitution and all laws enacted in pursuance thereof “shall be 
the supreme Law of the Land . . . .” 64 Any lingering doubts about 
constitutional supremacy were laid to doubt in Chief Justice John 
Marshall’s opinion in Marbury v. Madison . 65 It is beyond the 
scope of this essay to sketch out the Supreme Court’s frequent 
use of its power to enforce the Constitution, but that story — 
reminding state legislators, members of Congress, government of- 
ficials, and even the President of the constitutional limits upon 
their authority — is a familiar one. 

VI. World Constitutionalism 

Boosters in Tidewater Virginia like to talk of the “Historic Tri- 
angle” — the area that encompasses Jamestown, Williamsburg, 
and Yorktown. Jamestown, of course, is where the first perma- 
nent colony was planted. Williamsburg was Virginia’s capital dur- 
ing the revolutionary era. And Yorktown was the scene of the de- 
cisive battle where a British army, its band playing “The World 

61. See HOWARD, supra note 1, at 24. 

62. See LEVELLER MANIFESTOES, supra note 40, at 409 (Article XXX). 

63. 5 Thorpe, supra note 11, at 2548. 

64. U.S. CONST, art. VI. The article goes on to bind state judges, notwithstanding the 
provisions of a state’s constitution or laws. 

65. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


Turned Upside Down,” surrendered to the Americans. The visitor 
to these three places is stirred by physical evidence of history — 
the remarkable archaeological excavations on Jamestown Island, 
the reenactments on Williamsburg’s Duke of Gloucester Street, 
and the trenches where American troops laid siege to the British 
at Yorktown. 

Most visitors to that area, however, will probably pass through 
with only the vaguest notion of these sites’ relation to world con- 
stitutionalism. The Jamestown settlers arrived in 1607 under the 
aegis of the Virginia Charter, a bridge between constitutionalism 
in the Old World and the New. In Williamsburg, the convention of 
1776 drafted the first American state constitution and declaration 
of rights, the latter having its sequels in the other American 
states and influencing France’s 1789 declaration. At Yorktown, 
the American victory could not have been achieved without the 
aid of the French fleet; it is ironic that France’s aid to the Ameri- 
can cause was part of the financial drain that was a factor in the 
downfall of the ancient regime. Soon after the 1787 Philadelphia 
Convention drafted the United States Constitution, Poland and 
France, both in 1791, set in motion Europe’s age of written consti- 

The modern age has been marked by a lively traffic in constitu- 
tional ideas among nations. America’s early state and federal 
constitutions show the influence of Enlightenment thought, the 
writings of such thinkers as Locke and Montesquieu, and the ac- 
cumulated insights of British constitutionalism. While a student 
at Princeton, James Madison studied under James Witherspoon, 
giving Madison a direct link to the Scottish Enlightenment. 
Later, in preparing himself for the Philadelphia Convention, 
Madison read deeply, making notes on what the experience of the 
“ancient and modern confederacies” had to teach the Americans. 66 
To what they took from European sources, Americans, of course, 
added much that was drawn from their own experience. Ideas 
that were not unfamiliar to the Old World — notions such as popu- 
lar sovereignty, separation of powers, and federalism — took on 
new meaning in American hands. 

66. See James Madison, Notes on Ancient and Modern Confederacies, in 9 The PAPERS 
OF JAMES Madison 3, 4-24 (Robert A. Rutland ed., 1975). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


There has also been a reverse flow — the influence of the Ameri- 
can constitutional experience on other countries. Sometimes the 
use of American ideas has been voluntary, as when the French 
drafted their Declaration of Rights of Man and the Citizen. Other 
times American ideas have been imported in association with 
colonization (the Philippines) or military conquest (Japan after 
World War II). Sometimes American ideas have been accepted 
(the growth of judicial review). Other times American practices 
have been rejected (the French rejected bicameralism in 1791). In 
any event, American constitutionalism has been a powerful force 
in shaping constitutional debate from the earliest days to our own 
time. A few brief examples will give the flavor of this influence. 

A. The Founding Era in France 

Even before the revolution broke out in France, many people 
in that country, especially intellectuals, paid close attention to 
what was happening in the United States. To the philosophes, 
those events were proof that ideals could become reality. Benja- 
min Franklin and Thomas Jefferson, as American ministers in 
Paris, were glad to spread news of American developments, in- 
cluding seeing to the publication and dissemination of the texts of 
American constitutions. France’s Declaration of Rights of Man 
and the Citizen shows the influence of the Virginia Declaration of 
Rights. When the National Assembly debated France’s first con- 
stitution, the moderate faction, advocating bicameralism, pointed 
to such American precedents as Massachusetts’s 1780 Constitu- 
tion, while the more radical faction looked to Pennsylvania’s 1776 
document. France embarked on a constitutional course ultimately 
quite different from that of the United States, but it is significant 
that America’s founding documents helped frame the debate in 
France. 67 

B. Nineteenth-Century Europe 

Liberal reformers in nineteenth-century Europe looked to the 
United States as proof that liberalism and democracy could work. 
The revolutions of 1848 brought conventions at which drafters 

67. On the debates in France, see R.R. PALMER, THE Age OF THE DEMOCRATIC 
479-502 (1959). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


closely examined the American experience. Already Tocqueville’s 
Democracy in America offered rich insights into American life and 
practices, and the Federalist Papers had been translated into ac- 
cessible languages. At Frankfurt’s Paulskirche [St. Paul’s 
Church], the professors, lawyers, and others who assembled to 
draft a constitution for Germany referred frequently to such 
American institutions as federalism and judicial review. The 
Paulskirche Constitution was not ultimately implemented (it of- 
fended the more conservative powers in the German states), but 
its principles, especially federalism and judicial review, survive in 
Germany’s Basic Law of 1949. 68 

C. The United States in the Philippines 

Late in joining the colonizing game, the United States found it- 
self in possession of the Philippines as a result of the Spanish- 
American War. President McKinley called for a policy of “benevo- 
lent assimilation.” The American program for the Philippines in- 
cluded a gradual move toward self-government, the creation of a 
system of public education (modeled on American schools), and 
the wholesale transfer of American-style law and courts. In 1935, 
a constitutional convention drafted a constitution which, while it 
drew upon many sources, reflected pervasive American influence. 
Then, in 1946, the Philippines gained independence. Politics and 
society in today’s Philippines are a mix of Iberian and American 
ideas (the country was, after all, a Spanish colony for 300 years 
and under American control for only a half century). 69 

D. Woodrow Wilson and Making the World Safe for Democracy 

The United States’ participation in World War I brought per- 
haps the most famous American effort to plant an idea in other 
countries — making the world “safe for democracy.” Wilson 
sketched out his goals in broad terms. Seasoned by his years 

68. On the Paulskirche convention, see FRANK EYCK, THE FRANKFURT PARLIAMENT 
1848-1849 (1968); Bernd J. Hartmann, How American Ideas Traveled: Comparative Con- 
stitutional Law at Germany's National Assembly in 1848-1849 , 17 TUL. EUR. & Civ. L.F. 

69. On the American era in the Philippines, see STANLEY KARNOW, IN OUR IMAGE: 
America’s Empire in the Philippines (1989); Glenn Anthony May, Social 
Engineering in the Philippines: The Aims, Execution, and Impact of American 
Colonial Policy, 1900-1913 (1980). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


teaching constitutional law at Princeton, he did not think other 
countries were obliged to adopt constitutions modeled on that of 
the United States. He emphasized instead general themes — self- 
determination, free elections, the rule of law, a bill of rights, and 
an independent judiciary. 70 The father of post-war Czechoslova- 
kia, Thomas Masaryk, spent part of the war in the United States, 
where he issued a Declaration of Independence whose rhetoric 
was meant to appeal to Wilson in particular and Americans more 
generally. 71 Until it fell into Nazi hands in 1938, Czechoslovakia 
was the most successful democracy of the post-imperial states of 

E. Japan and Germany after World War II 

After Japan’s surrender in 1945, General MacArthur was the 
Allied Supreme Commander in Tokyo — in effect, Japan’s shogun. 
It was clear that Japan must scrap its 1885 Constitution (heavily 
inspired by the Prussian model) and institute a more democratic 
order. Concerned that the Japanese were inclined to tinker rather 
than undertake wholesale reform, MacArthur put his military 
government team to work on a new constitution. In seven days, a 
draft appeared which, despite Japanese reservations, was the ba- 
sis for the constitution that ultimately was adopted. 72 That con- 
stitution remains in force today, but Japanese politicians and 
scholars debate whether the constitution was imposed or whether 
it has been domesticated and is effectively Japanese. 73 

It was but a short time between the events in Japan and the 
Germans’ drafting and adoption of their Basic Law of 1949. The 
allied powers were, of course, in occupation in Germany, as they 
had been in Japan. As events unfolded, however, the Germans 

Quest for a New World Order (1992). 

Observations, 1914-1918, at 294-95 (1927). 

72. On the drafting of Japan’s Constitution, see 1-2 DALE M. HELLEGERS, We, THE 
Japanese People: World War II and the Origins of the Japanese Constitution 
(2001); Theodore McNelly, The Origins of Japan's Democratic Constitution (2000); 
ray A. Moore & Donald L. Robinson, Partners for Democracy: Crafting the New 
Japanese State under MacArthur (2002). 

73. See generally J. M. Maki, Japans Commission on the Constitution: The Final Re- 
port, in JAPANESE Legal System 484-92 (Meryll Dean ed., 2d ed. 2002) (discussing the 
debate over the voluntariness or involuntariness of the enactment of the Japanese Consti- 

Howard JB.doc 

9/7/2007 9:48:53 PM 


had a much freer hand in deciding on the shape of their Basic 
Law than the Japanese had in adopting their constitution. Lucius 
Clay, the American commander in Germany, was of a different 
temperament than General MacArthur. But the greatest differ- 
ence was that, with the fall of Czechoslovakia, the Berlin block- 
ade and the Berlin airlift, the Truman Doctrine (of containing 
communism), and the Marshall Plan, the Cold War was fully un- 
derway. Thus it is fair to say that the Basic Law produced in 1949 
was more authentically a German document than the Constitu- 
tion of Japan was Japanese. The Basic Law has aspects quite fa- 
miliar to Americans, such as federalism and judicial review, but 
they took on a distinctively German texture. 74 

F. The Post-Soviet World 

In 1989, the Berlin Wall came down, and communism collapsed 
throughout the former Soviet domain. A new era called for new 
constitutions. Advice came from lawyers and scholars in the 
West, especially from Europe and the United States. Free to chart 
their own course, constitution-makers in Central and Eastern 
Europe invariably wrote constitutions that look more like those of 
Western Europe than that of the United States. This is not to say 
that American influence was negligible. Rather, it reflects the 
fact that Poles, Czechs, and others in the region, having endured 
the communist era, wanted to return to the family of Europe and 
to join its institutions, especially the European Union. 

VII. Conclusion 

One should not be surprised that the influence of American 
constitutionalism in other countries is more diluted today than it 
was in the founding era. In the early years of the American re- 
public, the United States was the great beacon of hope to liberals 
and reformers in other lands. Then, as more countries adopted 
constitutions, other models for constitution-makers appeared. 
Other ideologies, such as nationalism and socialism, competed 
with liberal constitutional democracy. International politics, es- 

Republic of Germany 30-45, 205-23 (2d ed. 1997); Edmund Spevack, Allied Control 
and German Freedom: American Political and Ideological Influences on the 
Framing of the West German Basic Law Grundgesetz 405-55 (2001). 

Howard JB.doc 

9/7/2007 9:48:53 PM 


pecially the attitudes of powerful states, influenced the making of 
constitutions. Human rights, in the form of international and re- 
gional covenants became a source for drafters of constitutions. 
Moreover, there are practical limits on the extent to which today’s 
constitution-makers can use the text of the United States Consti- 
tution, drafted as it was, under eighteenth-century assumptions 
and whose modern understanding requires extensive knowledge 
of judicial opinions and other usages. 

A constitution must ultimately be grounded in the traditions 
and culture of the country for which it is designed. Even so, there 
are constitutional principles that transcend national boundaries. 
If the goal is constitutional democracy, then there are basic ideas 
in American constitutionalism that, in one form or another, serve 
to bolster that goal. These include limits on power (such as sepa- 
ration of powers and checks and balances), respect for local dif- 
ferences (reflected in federalism, devolution, or subsidiarity), pro- 
tection for individual rights, the place of civil society (to provide 
buffers between the individual and the state), an independent ju- 
diciary, and constitutional supremacy. All of these are features of 
American constitutionalism, and, adapted to a country’s own 
needs, they can do yeoman’s service in myriad countries. 

Where does the Virginia Charter of 1606 fit into this narrative? 
Does Jamestown deserve to be noted alongside Runnymede, 
Westminster, Philadelphia, and other foci of world constitutional- 
ism? History gives us constitutional moments — events and docu- 
ments that shape and inform the development of constitutional- 
ism, democracy, and the rule of law. Among these events and 
documents one may include Magna Carta, the English Bill of 
Rights, the Virginia Declaration of Rights, the Declaration of 
Rights of Man and the Citizen, the Philadelphia Constitution, the 
United Nations Charter, and the European Convention on Hu- 
man Rights. 

The Virginia Charter of 1606 may be seen as a bridge. First, it 
spans the distance between the Old World and the New World. It 
is a bridge that begins the process by which subsequent docu- 
ments, including the charters of other colonies, draw upon earlier 
principles and add yet new dimensions. Second, the 1606 Charter 
is a bridge in time. Reaching back to medieval constitutionalism 
as embodied in Magna Carta, the Virginia Charter helps put in 
play forces which, with the passage of time, have yielded the 
world of modern constitutionalism. 

Howard JB.doc 

9/7/2007 9:48:53 PM 


Thomas Jefferson offered the precept that “[t]he earth belongs 
always to the living generation.” 75 Jefferson’s admonition is ech- 
oed in George Mason’s Declaration of Rights for Virginia, which 
calls for a “frequent recurrence to fundamental principles.” 76 We 
inherit a constitutional legacy; we ponder revisions to reflect 
changed times; we pass the legacy along to future generations. 
The “adventurers” who wrote the Virginia Charter of 1606 may 
well have had their eye on the profits they would extract from 
their endeavor, but they also helped shape our constitutional des- 
tiny. For this we thank them. 

75. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 1 THE 
Republic of Letters: The Correspondence between Thomas Jefferson and James 
MADISON, 1776-1826, at 631, 634 (James Morton Smith ed., 1995). 

76. This language appears today in VA. CONST, art. I, § 15.